William G. Bates et al., Resp'ts, v. The United Life Insurance Association, App'lt.
(Supreme Court, General Term, First Department,
Filed March 17, 1893.)
1. Motions and orders—Judgment on pleading.
It is no objection to a judgment upon the pleadings that the notice of motion therefor was made returnable at a special court to be held at chambers, where the court also held a special term for hearing non-enumerated motions at the same time and place, and it was heard at the latter term.
2. Insurance (life)—Waiver—Non-forfeiture clause.
The policy in question provided that after two years the only considerations that should be binding on the holder were in relation to the payment of dues and assessments, and as to the regulations as to age, occupation and employment, and in all other respects it should be indisputable. In an action brought more than two years from its issue, Held, that fraud in the application was unavailing as a defense, and that an answer setting it up was manifestly frivolous.
Appeal from an order directing judgment in favor of the plaintiffs upon the complaint, answer and amended answer, and from the judgment entered pursuant to such order.
The policy contained the agreement that the said does hereby further promise and agree that after two years from the date hereof the only considerations that shall be binding upon the holder of this policy are that he shall pay the annual dues and assessments at the times and places, and in the manner, hereinafter stipulated, and that the regulations of the association as *87to age, occupation and employment shall be observed, and that in all other respects, if this policy matures after the expiration of said two years, this policy shall be indisputable.” Levi M. Bates died more than two years after the date of the policy. The association filed an answer setting up as a defense fraud on the part of the insured and the beneficiary in the application for the policy. Plaintiffs obtained judgment on the pleadings. The notice of the motion for judgment was as follows: “ You will please take notice that, on the pleadings in this action, I shall move this court, at a special term thereof, to be held at its chambers, in the county court house, in the city and county of New York, on the 7th day of November, 1892, at eleven o’clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for judgment as demanded in the complaint.”
Harry Wilber, for app'lt; W. I. Washburn, for resp'ts.
Van Brunt, P. J.
An answer having been interposed in this action, the plaintiffs claiming that no defense whatever was set up by such answer, made a motion for judgment upon the pleadings at a special term of this court. It is true that in the notice of motion the counsel falls into the error, so frequently committed in this district, of not distinguishing between the judge’s chambers and the special term for the hearing of nonenumerated motions, simply because the judge acting at chambers also holds in the same room a special term for the hearing of nonenumerated motions. The motion was made at a special term duly designated by the judges of this district to be held for the hearing of nonenmnerated motions, and it, therefore, was heard in the proper court.
The motion seems to have been unwittingly made under § 537 of the Code, which provides that if a demurrer, answer or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party of not less than five days, may apply to the court, or to a judge of the court, for judgment thereupon, and judgment may be given accordingly. The motion in question was a motion upon the pleadings for judgment, manifestly upon the ground that the answer contained no defense, and was, therefore, frivolous, and this motion was granted. The only difficulty in the disposition of this appeal is the length of the brief which has been submitted by the defendant, which would seem to indicate that he did not think the answer frivolous, although it manifestly is. The defense set up by the answer seems to have been expressly held to be unavailing in the case of Wright v. Mutual Benefit Life Association, 118 N. Y., 237; 28 St. Rep., 817, between which case and the one at bar we can see no distinction.
The judgment should, therefore, be affirmed, with costs.
O’Brien and Follett, JJ., concur.